Don’t pack the courts

The question progressives must answer in this and other cases is whether the alarms rightly sounded about Trump’s threat to democracy must be understood entirely or mostly in terms of democracy as outcomes, or also democracy as institutions. Of course, if what is feared is a threat to outcomes, then packing the Court is one among a number of rational responses. But if it is a threat to institutions, then its dangers are those prominently featured in the criticisms of the Trump presidency: contempt for institutions, an entirely instrumental view of law, and the hostility to reasoned debate and disagreement that all violate crucial norms for the conduct of vibrant democratic politics. As Trump displays his lack of understanding and respect for institutions, and progressives fear the costs to democracy in this second sense, the court-packing proposal seems especially ill-considered. It seems that Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.

Democrats and progressives concerned about a rightward drift or even lunge in the Court’s jurisprudence will wonder where this line of argument leaves them. Does it mean they have to tolerate a generation or more with a Court stacked with Trump nominees and, as some may fear, ready to run roughshod over precedent to achieve a triumph of conservative judicial supremacy? No, but the question is whether the defense against any such possibility would take the form of bona fide institutional reform, or merely result in additional and perhaps irreparable institutional damage and political fallout.